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Construction law reform - a forum

22 October, 1998 | By BY KIM FRANKLIN

Legal matters

New legislation can hit the national headlines and be enacted with breathtaking speed. The stringent measures introduced after the Omagh bomb spring to mind. Other statutes, such as the forthcoming Disability Discrimination Act, cause a stir within the communities most likely to be affected, but otherwise struggle for recognition. At the back of the publicity queue, lurks legislation which does not blaze a new policy trail but is designed to reform the existing law, particularly for special interest groups. The Forum for Construction Law Reform, launched last year by ex- construction minister Tony Baldry mp and construction barrister Anthony Speaight qc, aims to bring the need for construction law reform into the limelight, and to right the wrongs suffered by the industry and consumers alike, at the hands of the existing law in three particular areas.

Joint and several liability. This causes particular problems for construction professionals as it often saddles one member of the design team, who may be only partly to blame for the problem, with 100 per cent of the bill, if the others are not around to pick up their share.

Limitation. Ascertaining whether a claim is past its sell-by date causes endless problems with construction cases because the date from which a claim's shelf-life starts differs depending on the nature of the claim. Notoriously, the House of Lords said, in Pirelli v Oscar Faber, that time starts to run for some negligence claims when the damage complained of occurs - irrespective of whether the would-be plaintiff knew about it. You usually know when a negligent motorist has broken your leg: you may not know that your negligently designed foundations have failed until some time after the event. Attempts to introduce a shorter period, running from the date of knowledge, have only compounded the complexities of this area of law.

The rights of subsequent owners of defective properties. These have become particularly pertinent since the House of Lords, in Murphy v Brentwood, did away with subsequent owners' claims for defective buildings where they had no contract with the original constructors or designers. Those who intend to occupy a building, often let with a full repairing covenant, have endeavoured to protect their rights against those responsible for any subsequent defects with an armoury of collateral warranties, the efficacy of which remains to be tested by the courts.

With these injustices in mind, it is no wonder that the Construction Industry Board's Working Group 10, convened to carry forward Latham's recommendations in these areas, found universal agreement for its reform package including proportionate liability, a single 10-year limitation period, and the transfer of clients' rights to subsequent owners This is despite the fact that wg10 comprised representatives from all quarters of the industry, whose interests are readily recognised to be divergent.

So what next? The forum's mission is to put wg10's proposals on the statute books. It is now arranging for a construction law reform bill to be drafted. Such an initiative is ambitious and not for the fainthearted. The forum is encouraged, however, by two recent radical developments. Despite the long and difficult gestation of the new Arbitration Act, the vision of its draughtsmen finally delivered an innovative, user-friendly and much- welcomed piece of legislation. Furthermore, Parliament has also responded promptly to the perceived need of the construction industry and passed the Construction Act. So, asks the forum, why not introduce further much- needed reform? For further information about the Forum for Construction Law Reform contact Tony Baldry, mp, No. 1 Serjeants Inn, London, EC4Y 1LL.

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